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Summary

The claimant was entitled to income-related employment support allowance (ESA) that included the severe disability premium (SDP) and enhanced disability premium (EDP). In July 2018, she moved address and – having lost entitlement to housing benefit as a consequence – claimed universal credit (UC), thus undergoing ‘natural’ migration to UC and so ending her income-related ESA award. Her UC award was eventually corrected to award a transitional SDP amount (now known as a transitional SDP element). The claimant appealed as her UC still fell short of her income-related ESA, particularly because the transitional SDP element did not compensate her for the absence of an EDP in her UC. The First-tier Tribunal dismissed her appeal, holding that the UC correctly included the transitional SDP element at the prescribed amount. 

Judge Wikeley allowed the claimant’s further appeal. The tribunal had erred in failing to find, as it was bound to do, that in the light of the High Court’s decision in R (on the application of) TP and AR (TP and AR No.3) [2022] EWHC 123 (Admin) (‘TP (No.3)’), the failure of the transitional SDP element to compensate the claimant for the loss of the EDP as well as the SDP was in breach of her human rights. It was accepted (including by the Secretary of State) that the effect of the High Court’s declaration in TP (No.3) was that regulation 63 and Schedule 2 of the Universal Credit (Transitional Provisions) Regulations 2014 (‘the Transitional Provisions Regulations’) were unlawfully discriminatory. That was due to a breach of Article 14 on Human Rights read with Article 1 of Protocol 1 of the European Convention on Human Rights (‘the ECHR’). The breach was by failing to provide any transitional relief for the loss of the EDP on the claimants’ natural migration from legacy benefits to UC. Judge Wikeley observed that it was a basic starting point that the tribunal ‘is not, and should not be, in the business of applying unlawful regulations’ (paragraph 39). That applied (unless the tribunal was prevented by acting by statute) regardless of the public law error that the regulations contain, whether that is because they are ultra vires or irrational or (as here) because they breach rights in the ECHR (JN v SSWP (UC) [2023] UKUT 49 (AAC); [2023] AACR 7 cited). 

However, that left the question of remedy of the unlawfulness. It was argued for the claimant that the correct approach was to disapply the part of the Transitional Provisions Regulations (at regulation 48) that required ‘managed migration’ to have taken place before the claimant was entitled to full transitional protection to the amount of legacy benefit, so that that protection applied in natural migration cases too. Judge Wikeley disagreed. The relevant principles were those set out by the Supreme Court in RR v Secretary of State for Work and Pensions [2019] UKSC 52. That included that there was nothing to prevent a tribunal disapplying subordinate (not primary) legislation where that was necessary to comply with the Human Rights Act 1998 (which applied the ECHR). But in the present case, it was not regulation 48 requiring managed migration to apply before the transitional element could be awarded that resulted in the breach of the claimant’s human rights, but rather regulation 63 and Schedule 2 providing for the transitional SDP element. The judge also considered that the proposed disapplication of regulation 48 was not possible to do without undermining the statutory scheme by collapsing the distinction between natural and managed migration. ‘Collapsing the distinction between natural migration and managed migration,’ said the judge, ‘would be to stretch the art of the possible beyond breaking point, and would involve social engineering on a massive scale. Such decisions are for parliament and not judges’ (paragraph 54). However, the judge did agree with the claimant’s secondary argument, that it remained that the tribunal had been in error and that (in the absence of an obvious way of remedying the error) the appropriate remedy was (as in JN) to allow the appeal and remit the decision to the Secretary of State with a direction to remake the decision. The judge directed the Secretary of State to ‘redecide on a lawful basis the claimant’s entitlement to universal credit...’ (paragraph 60). 

Note from CPAG

The Universal Credit (Transitional Provisions) (Amendment) Regulations 2023, SI No.1238 (see Bulletin 298, p11) makes additions to the SDP transitional element so as also to compensate for loss of the EDP, but only takes effect from 14 February 2024.

Summary

The claimant was refused adult disability payment (ADP), a decision that was upheld on appeal by the First-tier Tribunal for Scotland (FTS). The claimant argued that the tribunal had erred in law by failing to use its powers to call for further evidence, particularly further medical evidence. He cited Lady Poole’s own comment in NB v Social Security Scotland [2023] UT 35, that in some cases it may be necessary for the FTS to consider exercising procedural powers (ie, to call for further evidence) in the First-tier Tribunal for Scotland Social Security Chamber Rules of Procedure 2018 (the ‘FTS Rules’) before determining the appeal. 

Lady Poole refused permission to appeal, holding that the FTS in the present decision had not erred. NB v SSS was decided on its own facts, which included that the appeal to the FTS in that case was decided on the papers without an oral hearing, the claimant’s account changed considerably over time, and GP records were not obtained. In the present case, by contrast, there had been an oral hearing at which the claimant gave evidence, and the information in the appeal bundle included information obtained by Social Security Scotland from the claimant’s medical practical and other sources. This was a common set of circumstances and is why, held Lady Poole: 

‘...in many cases, documents already lodged before the FTS will be sufficient to enable it to determine the case fairly and justly. This is particularly so in cases where written evidence is supplemented by additional oral evidence at a hearing, and the expertise of the FTS is used effectively (rule 2(2)(d) FTS Rules)’ (paragraph 5). 

Lady Poole also rejected a further argument by the claimant that the tribunal had given inadequate reasons for its decision. She held: 

‘The classic test for adequacy of reasons in Scotland is found in Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345. The tribunal must “give proper and adequate reasons for [its] decision which deal with the substantial questions in issue in an intelligible way. The decision must, in short, leave the informed reader ... in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it”’ (paragraph 8). 

She also referred to DS v SSWP (ESA) [2019] UKUT 347 (also a decision of hers, which in turn had included reference to Wordie Property Co Ltd). Adopting that approach, the tribunal expressly addressed the substantial questions in its decision, setting out its findings on the relevant facts and giving adequate reasons for those findings. 

Comment from CPAG

The approach taken to evidence and the adequacy of reasoning required in a First-tier Tribunal decision is very similar to that taken in extant caselaw from the UK Upper Tribunal. The reference to DS v SSWP (ESA) in this context further indicates, in relevant cases, the likely persuasive status of such authority before the Upper Tribunal for Scotland.

Summary

In this decision, the Court of Appeal unanimously dismissed the Secretary of State’s appeal against the decision of the Upper Tribunal in this case (AM v SSWP (UC) [2022] UKUT 242 (AAC)). As a result, the Upper Tribunal’s decision was upheld, and it remains that a claimant may request ‘backdating’ of their claim for universal credit (UC) on revision of the initial decision on entitlement, even if they did not request backdating when making the claim. 

Giving the lead decision, Lord Justice Underhill said: 

‘If the Secretary of State decides that the specified conditions are not satisfied, the claimant will not be entitled to the benefit for the past period; but there is no reason why that decision should not be treated simply as part of the determination of the claim, and subject, like the determination itself, to the procedures for revision and appeal’ (paragraph 51). 

The court also criticised the absence of a question about backdating on the online UC claim form (although formally that was not taken into account in the court’s decision): 

‘It is very unsatisfactory that the system for claiming UC does not offer claimants any opportunity to ask to have their claim backdated’ (paragraph 35). 

Comment from CPAG

The Secretary of State’s representative told the court that the issue of the absence of a question or prompt about backdating in the UC claim process was ‘under review within the DWP’. The case was brought by CPAG: for more details, see our test case No requirement to request backdating before a claim to universal credit determined

Summary

The claimant had been late requesting a review of his tax credits decision and HMRC had refused to carry out a late appeal. The First-tier Tribunal had struck out his appeal for not complying with the mandatory reconsideration requirement. In the Upper Tribunal decision in this case (CTC/886/2021), Judge Scolding QC had held that the ‘mandatory reconsideration’ requirement at section 38(1A) of the Tax Credits Act 2002 was satisfied, as in line with the position in benefits (established by R (CJ) and SG v Secretary of State for Work and Pensions (ESA) [2017] UKUT 324 (AAC), reported as [2018] AACR 5 – ‘CJ’) and so as not to deprive the claimant of his right of appeal, the rule had to be construed as meaning that a review had been ‘carried out’ even where, following a late application, HMRC had in fact refused to review the decision. HMRC appealed. 

Giving the lead decision in the Court of Appeal, Lady Justice Falk agreed that the Upper Tribunal decision was in error. CJ was based on legislation that was materially different to section 38(1A) of the Tax Credits Act 2002, which was clear in requiring that a review has been carried out, and ‘left no scope’ for the sort of approach adopted for benefits in CJ (paragraph 36). On a correct construction of section 38(1A), no review was done in this case, so the mandatory reconsideration requirement was not met. 

However, the court held that it remained that the claimant did have the right of appeal. That was because section 38(1A) was itself unlawful. That had been introduced under a so-called ‘Henry VIII’ power, in which an Act (ie, in this case, the Tax Credits Act 2002) had been amended not by another Act, but by a regulation (by contrast, in benefits, the mandatory reconsideration requirement had been created by provisions in the Welfare Reform Act 2012). Although amendment by a Henry VIII power was not in itself unlawful, the court considered that in this case the relevant amending regulation (the Tax Credits, Child Benefit and Guardian’s Allowance Reviews and Appeals Order 2014, SI No.886 – the ‘2014 Order’) had gone beyond the powers (ie, was ultra vires) of the relevant primary legislation that applied to it, which was section 124 of the Finance Act 2008. Reviewing various authorities on restricting the right of access to tribunals and courts, noting that section 38(1A) ‘entirely excludes’ the right of appeal contemplated by parliament before the 2014 Order took effect (paragraph 66) and the relevance of ‘the reality that many tax credit claimants will be vulnerable in some respect’ (paragraph 70), the court considered that in this case parliament had not passed the necessary enabling legislation for the Order. The amendment introducing the mandatory reconsideration requirement was unlawful as ultra vires and struck out. 

Comment from CPAG

HMRC is not appealing further. This decision removes the mandatory reconsideration requirement from the tax credits regime (but not the benefits regime). Rules providing for reviews are left intact, so that claimants may still request a review before going on to appeal, but the requirement to have done so is gone. See the article on p9 of Bulletin 299.

Decision in brief

Claimant last worked on 21 July 2020 and the claim for UC was made on 24 October 2020 (ie, just over three months later) – ‘undue delay’ test regarding retained worker status and gaps between the end of work and contacting the job centre to register as a jobseeker, established in SSWP v MK [2013] UKUT 163 and subsequent decisions – on the facts, claimant took no steps prior to 24 October to notify the DWP, and there was no evidence of job search in that period – lack of DWP monitoring of that is irrelevant – in particular considering the three-month delay, there was ‘undue delay’ and claimant had therefore not retained worker status

Summary

In this decision, the Court of Appeal dismissed the appeal of the Secretary of State against the previous decision of the Upper Tribunal (SSWP v AT (Aire Centre and IMA intervening) [2022] UKUT 330 (AAC)). The Upper Tribunal had held that the right to ‘dignity’ under Article 1 of the Charter of Fundamental Rights of the European Union (‘the Charter’) continued, after Brexit, to apply in certain circumstances, so that a refusal of benefit (in this case, universal credit (UC)) was capable of breaching the right of the claimant to live in ‘dignified conditions’. The claimant was a Romanian national whose only right to reside was pre-settled, had suffered trauma and was living in a refuge, and had only child benefit as income. 

The Secretary of State challenged the Upper Tribunal decision essentially on the basis that: (1) the Charter simply no longer applied following the transition period after Brexit; (2) even if it did, there was a sufficient defence that ‘in principle’ the UK’s existing law was capable of providing sufficient support, even if it did not in practice, and that in any event it was the responsibility of local authorities to provide such support so that any alleged breach must be enforced against them on judicial review and not against the Secretary of State for Work and Pensions; and (3) that in any event the only fundamental right that could apply was under Article 3 of the European Convention on Human Rights (ECHR) (on degrading and inhuman treatment), with the facts in this case coming nowhere near to breaching that. 

The Court of Appeal unanimously rejected the Secretary of State’s arguments and dismissed his appeal. Giving the lead decision, Lord Justice Green held that, on a ‘normal interpretation’ of the terms of the Withdrawal Agreement between the UK and the European Union, the Charter continued to apply, albeit within limits (paragraph 82). The Upper Tribunal had correctly identified that the Court of Justice of the European Union (CJEU) in Case C-709/20 CG v The Department for Communities in Northern Ireland EU:C:2021:602 (15 July 2021) had applied Charter rights to someone who had rights under the Agreement. That included that, when refused one form of support, the host state must determine whether the person was in need of other support to ensure their dignity and make their residence viable (paragraph 91); and that right was a ‘continuing’ right and not one (as argued by the Secretary of State) that ended with the close of the ‘transition period’ on 1 January 2021 (paragraphs 96–97). The Charter right to dignity in Article 1 was not co-extensive with Article 3 of the ECHR, despite the possibility of some overlap, and ‘the benchmark’ for determining whether there was a breach of Article 1 was that taken by the CJEU in CG (paragraph 113). 

The Secretary of State’s ‘in principle’ argument (ie, that whether other support was actually available to the claimant was irrelevant) was inconsistent with the decision of the CJEU in CG, with Article 4 of the Withdrawal Agreement and with principles governing how fundamental rights were to be protected. Also, the UK system as presented by the Secretary of State did not seem ‘even in principle’ to be capable of protecting a person such as the claimant (paragraph 123). For example, a person only with pre-settled status was ineligible for housing and homelessness support and child benefit (the latter of which seemed to have been paid in error in this case). Although a claimant with a child might theoretically be entitled to local authority support under section 17 of the Children Act 1989, the Upper Tribunal had correctly held that whether that did indeed prevent a breach of the claimant’s Charter rights depended on the evidence in the individual case. The Court of Appeal went on to conclude that the arrangements under the Children Act were ‘subject to serious legal and financial constraints’ and that, on the evidence, allocation of responsibility to local authorities did not meet the test for meeting the continuing duty to ensure the claimant’s Charter rights were effective (paragraph 169). The Upper Tribunal had also been right to say that an ‘individualised assessment’ of the claimant’s position was required in every case and that was mandated by the CJEU decision in CJ. That court had referred to a need to check that the claimant and the children for which they are responsible are not exposed, by the refusal of support, to ‘an actual and current risk’ of violation of their Charter rights. Here, ‘risk’ involved an element of forward looking, so that it did not only arise when it actually occurred, and other state support was only to be taken into account ‘if they are available there and then’ (paragraphs 153–156). 

Comment from CPAG

In effect, this decision leaves the decision of the Upper Tribunal in this case intact, and consequently the legal position of claimants with rights under the Charter unchanged. See the article in Bulletin 297, p7 for more.

For further details see our test case update: Destitute EU nationals with PSS can rely on EU Charter of Fundamental Rights to obtain universal credit.

Summary

The main issue in this judicial review case was the lawfulness of the requirement, for bereavement support payment (BSP), that the claimant’s deceased spouse had paid sufficient class 1 or class 2 national insurance contributions, given that due to disablement she had been unable to work for her entire life. The claimant simply asked the judge to follow and apply the decision of the Northern Ireland Court of Appeal (NICA) in O’Donnell v Department for Communities [2020] NICA 36 (10 August 2020). There it was held that the requirement was in breach of human rights law as discrimination on grounds of disability, and held that the relevant Northern Ireland legislation must be read so as to deem the contribution condition to have been met in such circumstances. That had not been appealed, and post-O’Donnell official guidance in Northern Ireland instructed decision makers to consider whether the deceased spouse had been unable to work throughout her/his life due to disability. The Secretary of State argued that O’Donnell should be distinguished and was in any case wrongly decided. Mr Justice Kerr allowed the claimant’s application so as to make the same result as in O’Donnell – ie, that in such cases the national insurance condition must be deemed to be satisfied.

In the present case, the claimant’s late spouse had suffered from severe disability from birth and had never been able to undertake paid employment. The claimant was refused BSP on the grounds that his late spouse did not satisfy the requirement, in section 31 of the Pensions Act 2014, to have paid sufficient national insurance contributions. Neither party argued that O’Donnell was binding authority in Great Britain. However, Mr Justice Kerr did consider that: ‘Human rights should if possible have the same content throughout the UK. If O’Donnell is not distinguishable, I would not depart from it unless persuaded that is clearly wrong, which I would find only with great diffidence’ (paragraph 47).

Although the judge accepted that he did have to consider the arguments afresh, he held that (contrary to the Secretary of State’s arguments) O’Donnell was neither distinguishable nor clearly wrong. He agreed with the NICA that for the purposes of the discrimination rule in Article 14 of the European Convention on Human Rights, the claimant had an ‘other status’ – ie, ‘the spouse of a deceased person who was severely disabled so that she was unable to work and therefore unable to pay class 1 or class 2 national insurance contributions’ (paragraph 80). He also agreed with the NICA that the discrimination in this case was the failure to treat the claimant differently from those where the late spouse had been able to work. That left the issue of whether the treatment of the claimant was nevertheless justified. It was not, for the same reasons as given in O’Donnell, namely that a ‘less intrusive measure’ could have been adopted without compromising the objective of the rule, and that the ‘severity of the measure’ outweighed the importance of the objective (paragraphs 86–88). There was nothing in the fact that the NICA was considering subordinate legislation, namely the Pensions Act (Northern Ireland) 2015: it was still an Act of the Northern Ireland Assembly and any effect of its being subordinate was ‘theoretical rather than real’ (paragraph 98). In conclusion, the judge said: ‘The NICA’s decision was not appealed. If it is departed from, that is likely to be by a higher court than mine. I find that the claim succeeds and I will make a declaration in the same words as the declaration made in O’Donnell…’ (paragraph 100).

Note: the Secretary of State appealed to the Court of Appeal. For the Court of Appeal's decision, see Jwanczuk v Secretary of State for Work and Pensions [2023] EWCA Civ 1156.

Summary

In this decision, the Court of Appeal unanimously held that the child element was not a ‘family benefit’ for the purpose of the main European co-ordination rules in EC Regulation 883/04. In so holding, the court in effect upheld the previous decision in this case by the Upper Tribunal in SSWP v MS [2023] UKUT 44. 

The claimant was a Slovakian national living and working in the UK. Her son lived in Slovakia. She was refused the child element of universal credit (UC) for him (as she did not satisfy the ‘main responsibility’ test in the domestic UC rules). She argued that the child element was severable from UC (ie, could be treated separately), so as to be regarded in itself as a ‘family benefit’ and therefore be payable by virtue of the co-ordination rules in EC Regulation 883/04. She also argued that, if unable to accept that, the court should make a reference to the Court of Justice of the European Union (CJEU). 

The court rejected that argument. The child element was not severable from UC and was not to be treated as a ‘family benefit’ for the co-ordination rule. Giving the lead judgment, Lord Justice Green’s starting premise was that ‘...properly construed by reference to its purpose and context Regulation 883/2004 does not incorporate a test of severance’ (paragraph 37). 

After reviewing the relevant caselaw, the judge concluded: 

‘... I do not detect in the jurisprudence of the CJEU either the existence of a principle of severance, or even its earliest germs. To the contrary, the caselaw is consistent with the proper inferences to be drawn from the structure and policy of Regulation 883/2004 which is that the Regulation does not undermine the essential freedom of member states to shape their own social security systems and that generalised, composite, benefits schemes are outside the scope of the regulation. In my judgment the position is sufficiently clear for there to be no need for a reference to be made to the CJEU under Article 158 of the Withdrawal Agreement’ (paragraph 52).

Summary

In this decision, the Court of Appeal upheld the challenge by the claimants to the decision in this case of the High Court (see R (Fratila and Tanase) v Secretary of State for Work and Pensions [2020] EWHC 998 (Admin)). In a majority decision, the Court of Appeal held that regulations excluding ‘pre-settled status’ as a valid right to reside for benefit purposes were unlawful, and quashed those regulations.

The claimants were Romanian nationals who came to the UK in 2014 and 2019 respectively. In 2019, each was granted limited leave to remain in the UK under the European Union (EU) Settlement Scheme (also known as ‘pre-settled status’). Both claimants applied for universal credit (UC) but were refused on the grounds that their pre-settled status was not a sufficient right to reside to enable them to access means-tested benefits, as a result of amendments made by the Social Security (Income-related Benefits) (Updating and Amendment) (EU Exit) Regulations 2019.

The claimants argued that the exclusion of the pre-settled status right to reside was is in breach of the EU right not to be discriminated against on the ground of nationality in comparison with UK nationals, as at Article 18 of the Treaty on the Functioning of the European Union. That argument had been rejected by the High Court, on the basis that any discrimination against them was indirect and was justified. Departing from that, the court held that the regulations were unlawful and ordered that they be quashed. Firstly (and contrary to the argument of the Secretary of State), once a claimant had a right to reside under domestic law (as here, via the EU Settlement Scheme), then discrimination in breach of Article 18 was not permissible, and the separate European rules conferring right to reside (Directive 2004/38/EC, which did not provide the claimants with a right to reside) were not a complete set of rules for benefit entitlement.

Secondly, discrimination under Article 18, once established, was unlawful and (as direct discrimination) was not capable of justification. Article 18 was breached here as the regulations introduced discrimination on the basis of nationality, in that European nationals who had been granted a right to reside under domestic law were refused benefit on right to reside grounds. In the lead decision, Lord Justice McCombe, drawing on a line of authority from the Court of Justice of the European Union (CJEU), said: ‘Accordingly, by direct application of the CJEU decisions, as interpreted in our own courts, a discrimination of the present type is prohibited by EU law and the question of justification does not arise’ (paragraph 71 ). Lord Justice Dingemans, in the minority, considered the discrimination to be indirect and therefore capable of justification, and to be justified.

The Order of the court quashes both the legislation which provides that having ‘pre-settled status’ is not a sufficient right to reside for the purposing of accessing means-tested benefits and the decisions of the Secretary of State for Work and Pensions refusing the claimants UC. However, the court granted a short stay to 26 February 2021 (during which time the Secretary of State did not have to implement the judgment.)

Comment from CPAG

The Secretary of State has appealed to the Supreme Court, and also requested a further stay. Despite Brexit, the effect of the quashing of the legislation is that, once the stay is lifted (and subject to any further appeal), anyone with pre-settled status satisfies the ‘right to reside’ test for access to means-tested benefits. See also the legal test cases pages on CPAG’s website. 

For the Supreme Court's decision, see our caselaw summary Fratila and another v Secretary of State for Work and Pensions [2021] UKSC 53.

Summary

The Supreme Court unanimously held that amendment regulations providing that pre-settled status under the European Union (EU) Settlement Scheme was excluded from conferring an effective right to reside for entitlement to universal credit (UC) were not unlawful on grounds of discrimination under European law. In so holding, it allowed the appeal of the Secretary of State against the contrary decision of the Court of Appeal in this case (Fratila and Tanase v Secretary of State for Work and Pensions and another [2020] EWCA Civ 1741, 18 December 2020).

The claimants were Romanian nationals whose only right to reside in the UK was by virtue of their pre-settled status, and had been refused UC. The Court of Appeal had accepted their argument that the exclusion of that right to reside in the context of entitlement to UC was discrimination on grounds of nationality, in breach of Article 18 of the Treaty on the Functioning of the European Union (TFEU), and quashed the amendment regulations introducing that exclusion. The Supreme Court reversed that, in the light of the decision of the Court of Justice of the European Union (CJEU) in CG v Department for Communities in Northern Ireland, Case C-709/20, reported as [2021] WLR 5919 (15 July 2021). That in effect held, in a separate case but with identical arguments, that in such a case whether the EU citizen had been subject to discrimination on grounds of nationality fell to be assessed not under Article 18 of the TFEU, but under Article 24 of the ‘Residence Directive’ (2004/38/EC). For that to apply, the claimant had first to reside in compliance with the Directive – ie, to have a right to reside in the first place.

In the Supreme Court, the parties agreed that (by virtue of Articles 86(2) and 89(1) of the Withdrawal Agreement, which has domestic effect by virtue of section 7A of the European Union (Withdrawal) Act 2018), the judgment of the CJEU in CG ‘will have binding force in its entirety on and in the United Kingdom’ (paragraph 8). Further, it was a common ground that the claimants did not reside in the UK in accordance with the Directive at the time of their claims for UC – ie, they did not have a right to reside under the Directive. ‘They cannot therefore,’ said Lord Lloyd-Jones in the judgment for the court, ‘rely on the EU principle of non-discrimination to claim a right to equal treatment in respect of entitlement to universal credit’ (paragraph 12).

The court refused to consider a new argument for the claimants, submitted in the light of the decision of the CJEU in CG, that before refusing entitlement the Secretary of State was obliged to consider whether the claimants’ rights under the Charter of Fundamental Rights of the European Union (including the right to live in ‘dignified conditions’) would be breached. Lord Lloyd-Jones said: ‘While an appellate court will always be cautious before permitting a new point to be raised for the first time on appeal, it would clearly be inappropriate to do so where, as in the present proceedings, the new case would raise issues of fact which have not been determined… I would add that while the CJEU in CG drew attention to the possible relevance of the Charter to the particular circumstances of that case, it is immediately apparent from paragraph 92 of the judgment of the CJEU that CG’s situation was materially different from that of the respondents to the present appeal’ (paragraph 14)

Comment from CPAG

The court held, conclusively as domestic authority, that the claimants had not been discriminated against under the TFEU or the Directive. However, arguments based on the reference in CG to rights under the Charter of Fundamental Rights of the European Union and on discrimination under the Human Rights Act remain possible, although as yet untested. See the article in Bulletin 286, p8.

Summary

ln R (Rutherford and another) v Secretary of State for Work and Pensions [2016] EWCA Civ 29, the Court of Appeal had previously held that it was a breach of the claimant's human rights (via unlawful discrimination on grounds of disability) not to provide for a bedroom required for an overnight carer of a disabled child. Although regulation 813 provided for an extra bedroom for an overnight carer of a disabled adult, it did not extend to a child requiring overnight care. The Supreme Court held, in R (Rutherford and another) v Secretary of State for Work and Pensions, that there was no reasonable justification for the difference in treatment, there being no 'sensible reason' for distinguishing between adults and children in need of overnight care (paragraph 46). Setting out the lead decision, Lord Toulson added that there was 'an ironic and inexplicable inconsistency' in the approach of the Secretary of State, in that he referred to the best interests of the child in one context, but then provided in the present context that disabled children were treated less favourably. The Secretary of State's appeal against the decision of the Court of Appeal was therefore dismissed (paragraphs 47-49).

In R (Carmichael and Rourke) v Secretary of State for Work and Pensions (previously part of the Court of Appeal's decision in R (MA and others) [2014] EWCA Civ 13; [2014] PTSR 584 -Bulletin 239, p10), the claimants were adult partners who could not share a bedroom because of disability. The problem here was that although regulation 813 provided that disabled children were not expected to share a bedroom, that did not extend to adults clearly unable to share because of disability. The Court of Appeal had previously dismissed the claimant's application. The Supreme Court allowed the claimants' further appeal (thus finding that the appellants were unlawfully discriminated against), applying similar reasoning to that in the Rutherford decision (paragraph 46).

The other claimants in the case formerly known as MA and others were dealt with by the Court in R (Daly and others) v Secretary of State for Work and Pensions. The circumstances of the claimants were various, but all involved disability. However, the Supreme Court distinguished these cases from those in the Rutherford and Carmichael cases in that in the latter cases, unlike in these cases; there was a 'transparent medical need' for an extra bedroom (paragraph 42). In Daly and others, the Supreme Court dismissed all the claimants' further appeals. The Secretary of State's approach was not to provide a general exemption for disability, but to rely on the discretionary housing payment (DHP) scheme to allow coverage of full rent in individual cases. The correct legal test was whether that approach was 'manifestly without reasonable foundation' (paragraphs 28-38). It was reasonable for there to be no 'blanket' exemption for disability (paragraph 41), and in the individual cases, in which the Court did not see an 'objective' need for an extra bedroom, it was 'not unreasonable' for full coverage to be considered under the DHP scheme (paragraphs 50-55).

The Court took a similar approach in R (A) v Secretary of State for Work and Pensions, this time regarding a woman living in a 'sanctuary scheme' home. The Court of Appeal had held that the bedroom tax rules unlawfully discriminated against the claimant on grounds of sex. Allowing the Secretary of State's appeal, Lord Toulson accepted the argument that the individual facts in such cases would vary, with consequently varying results regarding whether claimants 'really needed to stay in that particular property', even though sanctuary scheme accommodation was required (paragraphs 59-64). Ultimately, the reliance placed by the Secretary of State on individual evaluation for payment of DHPs was not 'manifestly without reasonable foundation' (paragraph 66). Consequently the application of the bedroom tax involved no unlawful discrimination. However both Lady Hale and Lord Carnwath dissented from the judgment in this particular case.

Comment from CPAG

The finding of unlawful discrimination against disabled children needing overnight care and adult partners unable to share because of disability is very welcome, although the failure to regard women needing sanctuary accommodation as needing to remain in their accommodation is disappointing in equal measure (it is understood that the claimant in A is applying for leave to appeal to the European Court of Human Rights). Claimants who could benefit from the decision should apply immediately to their local authority for the decision to be applied to them. However, at time of writing in Housing Benefit Urgent Bulletin HB U3/2016, local authorities had been advised by the DWP that as the regulations were not actually struck down, the rules should continue to be applied until the DWP gets round to changing them. In CPAG's view this is wrong, as the decision clearly finds the regulations in breach of human rights requirements.

Summary

In this decision the Court of Appeal rejected a challenge to the decision of the High Court in R (MA and others) v Secretary of State for Work and Pensions [2013] EWHC 2213 (QB). The result is that the lawfulness of the 'bedroom tax' as applied to disabled people has again by upheld by the courts.

The claimants were a number of disabled adults with varying circumstances, but who had been subject to the bedroom tax. The issues considered by the Court were: (1) whether the bedroom tax constituted unlawful discrimination against disabled people, as in breach of Article 14 of the European Convention on Human Rights ('the Convention) read with Article 1 of Protocol 1 (protection of property; and (2) whether the bedroom tax was made in breach of the Secretary of State's public sector equality duty under section 149 of the Equality Act 2010 to have 'due regard' to the need to eliminate discrimination and advance equality of opportunity for disabled people. The Court unanimously held that the bedroom tax breached neither Article 14 or the public sector equality duty.

Regarding Article 14, the Court held that the alleged discrimination was indirect discrimination (or so-called Thlimennos discrimination, the distinction between the two was unnecessary here) (paragraph 4 7) and so was capable of justification. The relevant test for deciding if it was not justified was if the measure is 'manifestly without reasonable foundation' (paragraph 49). Giving the lead decision, the Master of the Rolls said that, looked at in isolation, the relevant rule (regulation B 13 of the Housing Benefit Regulations 2006) plainly discriminates against disabled people who have a need for an additional bedroom by reason of their disability (paragraph 39). But it was not realistic to look at regulation 813 in isolation; it had to be considered as part of a 'package for dealing with the problem of under-occupation', that included certain exemptions from the bedroom tax and reliance on discretionary housing payments (DHPs) for others (paragraph 40). Looked at in this way, and taking into account the Secretary of State's stated reasons for the bedroom tax, the discrimination was justified (and so not unlawful) (paragraph 71). The Court accepted that the category all disabled people who needed an extra bedroom by reason of their disability 'may be relatively large, not always easy to recognise, may be open to abuse and (in some cases at least) will require monitoring'. Also the DHP fund has been increased and the relevant guidance altered (paragraph 72). The Secretary of State was entitled to the view that it was not practical to add such a category of claimant to the exemptions from the bedroom tax, and the Court did not accept that exempting disabled children who needed an extra room but not disabled adults who needed an extra room was irrational or without objective or reasonable justification - the best interests of children were a primary consideration (paragraphs 73-79).

On the public sector equality duty, it was established that the principal question was not whether the decision was justifiable, but whether in the process leading to the making of the decision, the decision maker had 'due regard' to the relevant considerations (paragraph 83). The Court considered that the history of the evolution of the bedroom tax policy showed that the Secretary of State had 'well understood that there are some disabled persons who, by reason of their disabilities, have a need for more space than is deemed to be required by their non-disabled peers', and that the scheme had been considered 'in great detail' by the Secretary of State and by Parliament. Also, the adequacy of the DHP scheme had been considered and kept under review. The process did not breach the Secretary of State's public sector equality duty (paragraph 92).

Comment from CPAG

The Court's reasoning makes clear its view that the position of disabled adults who require an extra bedroom is not to be equated with that of disabled children who need an extra bedroom (provision regarding which is now made in regulation 813). At time of writing, a further appeal to the Supreme Court, was under consideration.

Note: for the Supreme Court's decision, see R (MA and others, A, Rutherford) v Secretary of State for Work and Pensions [2016] UKSC 58.